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Armed & Employed

March 1, 2010

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Gun control and gun rights advocates battle over the right to bear arms in the workplace

By Lauretta Claussen, associate editor

KEY POINTS
  • The National Rifle Association and other gun rights lobbyists claim an employer’s refusal to allow guns on private property is a violation of Second Amendment rights and threatens the safety of employees on their way to and from work.
  • Gun control proponents contend that having guns accessible at work or in company parking lots is dangerous and could lead to an increase of gun violence in the workplace.
  • Few conclusive studies have been conducted to determine whether having firearms accessible at work makes employees more safe or less so.
  • Gun laws vary state by state, so employers should be well-informed about legislation in their area when creating a workplace gun policy.

Legislation that was moving through the Indiana General Assembly when Safety+Health went to press would allow workers with legal permits to keep loaded guns in locked vehicles in their workplace parking lots. House Bill 1065 – which passed the Indiana House and was headed to the Senate at press time – also would protect employers from liability in the case of a workplace shooting on their property. If enacted, Indiana would be the 13th state to support such legislation. The issue of guns on company property is a contentious one. Gun rights advocates see the passage of bills similar to the one being considered in Indiana as a validation of employees’ Second Amendment rights. On the flip side, those in favor of stricter gun control laws claim property rights as the pre-eminent legal issue, and view legislation compelling employers to allow guns on private property as a violation of these rights. From both a legal and safety perspective, determining an employer’s best option can be difficult.

Battle for legal precedence

Which legal issue – the Second Amendment or property rights – truly takes precedence is still up for debate in many parts of the country. Gun laws vary widely state by state, although the National Rifle Association successfully lobbied for passage of so-called “parking lot laws” in a dozen states.

The push for such legislation began in the parking lot of a Weyerhaeuser Co. plant in Valiant, OK. In 2002, during a random canine search of vehicles in the company parking lot, a number of guns – both hunting rifles and handguns – were found in some employees’ vehicles. In spite of the fact that the gun owners had permits for the guns and were legally allowed to transport them in their vehicles, the company fired 12 employees who were in possession of firearms.

The incident caused an outcry from gun rights lobbyists and was a major catalyst for the 2004 passage of an Oklahoma state law prohibiting employers from banning anyone but convicted felons from carrying a legally owned firearm onto private property. In February 2009, after a lengthy legal battle, the U.S. Court of Appeals for the Tenth Circuit upheld the law, dismissing critics’ claims that it violates federal workplace regulations.

“We’re hoping that this court case will set precedent for the future discrepancies with this parking lot legislation and law throughout the country,” said Vickie Cieplak, media liaison with Fairfax, VA-based NRA’s Institute for Legislative Action. Cieplak said people legally carry their firearms in their vehicle for any number of reasons, including hunters planning to head out after work or citizens carrying a gun for their personal protection while on the road. “All 50 states allow for transportation of firearms in motor vehicles for lawful purposes,” she said, “and 48 of those states allow the carrying of firearms in motor vehicles for personal protection in some manner.” The Oklahoma law, she added, is a sign that “states are recognizing a person’s day does not begin and end in the office. … People should be allowed to protect themselves [going] to and from work.”

Not surprisingly, gun control advocates see the issue differently. Rather than a Second Amendment case, they view it as a case of individuals being denied control over their property. “We believe strongly that businesses and private property owners have the right to keep a safe workplace and to make those determinations themselves, and not have the state or the government mandate what they should be doing in their workplace,” said Brian Malte, director of federal and state mobilization for the Washington-based Brady Campaign to Prevent Gun Violence. The Oklahoma legislation, he said, “tramples private property rights.”

Malte contends that the determination of whether or not guns belong in the workplace or company parking lot should be left up to the employer. “Forcing private property owners to give up part of their rights to keep a safe workplace – which includes all their property, including the parking lot – is really anti-American,” he said, pointing out that the Second Amendment merely gives individuals the right to own guns – not necessarily the right to carry them. Although the case may be settled for now in Oklahoma, the legislative battle awaits in many more states.

Guns and workplace safety

More pertinent than property rights, gun control advocates argue that having guns accessible in the workplace threatens the safety of workers. “Having a loaded gun accessible is a really, really bad policy,” Malte said. “Somebody gets upset, they go out to their car and [a gun] is available. And it could be a complete disaster.”

Malte acknowledges that a gun ban in workplace parking lots could be an inconvenience for some employees, such as the few involved in the Oklahoma case who had guns in their cars for a post-work hunting trip, but he stated that leaving guns at home “is an inconvenience that I think we all have to do for the greater good.” Simply stated, “Having guns on the premises is dangerous.” A 2005 study published in the American Journal of Public Health (Vol. 95, No. 5) seems to support this claim. Evaluating workplaces in North Carolina, the study suggested workplaces that allowed employees to carry firearms were 5 times more likely to experience a workplace homicide.

NRA disputes such claims, pointing to Bureau of Labor Statistics figures that indicate 84 percent of workplace violence incidents are perpetrated by strangers or former employees – none of whom would be affected by an employer’s gun policy. The association further points to its own research that indicates owning a gun makes individuals safer, and notes that violent crime rates across the country have declined in recent years in conjunction with an increase in the number of firearms in America.

Charges of discrimination

Focusing legislation on property rather than people is a dangerous precedent, Cieplak said. “They argue that the rights of a humble patch of asphalt outside a business trumps our constitutional rights.”

Citing a USA Today/Gallup poll that indicated one-quarter of Americans carry a gun for personal protection, Cieplak claimed workplace policies banning guns not only threaten the rights and safety of workers, but also discriminate against a large segment of the population. “These gun bans are blatant discrimination against people who choose to exercise a constitutional right and take responsibility [for] their own safety,” she said. “These policies cut to the core of the natural guaranteed self-defense, and they render right-to-carry permits basically meaningless.”

A growing trend?

One of the Brady Campaign’s greatest concerns is that NRA will not stop at simply allowing guns in workplace parking lots, and instead will push for employees to be armed on the job. “We don’t think they’re going to stop there,” Malte said. “They are going to want guns literally in the workplace. One of the things we would argue is that this is part of a larger goal of the gun lobby, which is any gun for anyone, anytime, anywhere.”

Although the battle for parking lot laws, Cieplak said, “is a fight that we will continue to fight in every state and probably at the federal level eventually,” she further stated that guns in the workplace is not on NRA’s agenda – at least not yet. “There’s no legislation or anything as of right now regarding [guns] in the workplace,” she noted, “so we don’t have a position on that until we see legislation.” Malte claims the gun lobby is fear-based and attempts to create an illusion that individuals are safe from violent criminals when they are armed. He argued the opposite and pointed to Colin Goddard, former Brady Campaign intern and multiple gunshot victim from the 2007 Virginia Tech massacre, as an example of how individuals are safer in a group setting when they are unarmed. When shots were fired at the school, Goddard “dialed 911 and got the police to come right before he was shot,” Malte said. “That phone call probably saved a lot of lives. … [Goddard is] the first one to tell you, in all that confusion and everything in that classroom, that guns would have made matters worse. Kids were running all over the place and it was just mass confusion.”

He believes it is dangerous for individuals to try to play protector or vigilante in a tense situation. “Police officers who receive all of this training and consistent training … still miss their target 80 percent of the time,” Malte said. “It’s a fantasy to think that untrained people across the country are going to make the right decision” in a workplace violence situation.

“On top of that,” he added, “when law enforcement comes to a scene, they don’t say ‘OK – everybody stop shooting. Who’s the bad guy? Who’s the good guy?’ They make decisions. They see a shooter, they take a shooter down.”

Employer response

With regard to guns in the workplace itself, employers are largely free to establish their own individual rules and regulations. Safety experts offer differing viewpoints on exactly what type of policy is best.

Nick Dillon, director of education and risk services at Aegis Corp. in Wildwood, MO, believes guns and workplaces are a bad combination. “If I am looking at it from a liability and risk management standpoint, I would support that [guns in the workplace] continue to be banned,” he said. “Business owners should be able to set rules and guidelines that prohibit them from bringing the guns onto their property simply for the protection of their business, the public and their property itself.”

Chuck Klein is a security expert and author of “Guns in the Workplace,” an employer’s guide to gun policies. It is his contrary belief that “a select number of armed and trained employees in every workplace is best, especially if signs are posted at entrances saying ‘CRIMINALS BEWARE. EMPLOYEES AND/OR PATRONS MAY BE ARMED.’”

Klein believes companies should establish specific rules for employees who choose to carry firearms on company property, including requiring the employee to inform the employer of his or her decision to carry a gun, and proof that he or she is qualified and trained to use it properly.

For companies that choose to ban firearms in the workplace, Klein believes they should be diligent about security, installing metal detectors at company entrances and hiring armed guards on company property, particularly in the parking lot. Whichever option an organization chooses, Klein said it is critical for both employee safety and employer liability that employers thoroughly understood the issue. “Employers who can document they have studied the issue and then install written policy should stand a much better chance of surviving lawsuits if or when lethal force is used in a workplace,” he said.

The recent movement of parking lot legislation in Indiana seems to support Klein’s belief that gun laws are trending “more toward allowing. It seems to be clear that security measures and/or police can’t protect everyone all the time.” Whether that trend will continue remains to be seen.

When David Michaels was appointed OSHA administrator, some gun rights advocates were fearful about his previous strong gun control stance. Yet NRA remains hopeful that Michaels’ opinions on guns will not encroach on employees’ rights. “We certainly hope that his views will not cause him to ignore the federal court rulings on the parking lot issue, as well as OSHA’s own positions in the past,” Cieplak said. “Two federal courts found that the federal safety laws don’t override state laws that protect workers’ self-defense rights, and OSHA itself has said that it doesn’t have authority to ban guns in the workplace.”

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